EL: Just to switch gears a bit, I do want to focus on one of your last chapters in the book which talks a lot about the foreign rule of law

One of many international conference held in China regarding the internment

projects and environmental aid projects that have been happening in China for the past decade. Now as part of your research, you were able to attend some of these foreign sponsored conferences and see some the effects of this foreign aid. Can you give us a little bit of background on this and what the landscape looks like for foreign aid projects in the environmental sphere?

RS: Sure. I did most of the research for this book between the end of 2006 and the beginning of 2008. I wasn’t really originally planning to write about international NGOs or foreign aid. But as I was doing my interviews in China at that point, it wasn’t purely a domestic story, that it would be weird to write about environmental lawsuits and not write about the foreign, mostly international NGOs, who are trying to support environmental lawyers and environmental lawsuits and the development of public interest law in China.

Once every two weeks, around that much, I would get an email announcing some kind of roundtable or training program or workshop on one of those themes. Whether it was environmental law or there was a lot of public interest law and public interest litigation. These were ideas that were really very much in the intellectual ether and really being promoted by a range of international NGOs. So I felt that I had to write something about those efforts and the kind of effect I thought they were having.

EL: And what do you think….based upon what you viewed, what do you think the efficacy of these programs are?

How successful are these international programs?

RS: I tried to write the chapter right down the middle; people react to it really differently. But what I was trying to say is that I think they have some successes in an extremely difficult environment for action. I think what’s challenging is that these programs have been caught up in the seduction of quantification. There is a ton of pressure to count things, to have quantifiable outcomes for these programs. I think often in a worst case scenario, that boils down to the number of people trained. How many trainings can we run? How many can we run in how many different areas of the country? How many people have been there?

I think this is really the wrong approach because where I see the successes of these programs are not on the mass level. So if you have 100 people at a training I think 95 of them are going to go back to their same old existence. And I think that’s as we would expect. Think about how many three-day workshops you have been to.

EL: I have been to a lot! [Laughter] And I go back to my old life a lot.

RS: Me too. I can’t think of any three-day workshop I have been to that has changed the direction of my life. So I think that the effects are most evident for a very small minority of people who really use these as springboards to really change their life and their commitments. And I also think that they can be really effective in promoting ideas and putting ideas in circulation and discussion that were not there before. So I think those effects are really important but they’re almost impossible to quantify which is why it is so frustrating for donors.

EL: In the past couple of months you have seen some foreign donors like the Canadian government and the Swedish government pulling out its aid to China on a lot of these projects. Do you think it’s a smart move? What do you think will be the result if more donors follow suit and pull out aid from China for projects like these?

RS: I think donors have been pulling out because the economic argument – providing aid to China – holds absolutely no water any more. It’s clear that China….

EL: …is very wealthy….

RS: They should be giving us aid if you look at it as a tool for economic development or something like that. I am waiting for the discourse to shift so that we look at these programs as a tool of diplomacy. Which is really how I see them.

EL: I think you note that in the book and I think that’s important that I think gets lost in the shuffle about quantifying all of these projects is that you learn whose on the ground. If you do the projects right you learn who is on the ground in remote areas that’s doing really cool work and that can help…you can find out who those people are and see what is really happening.

RS: Yes. Your question was about what are we going to lose and when I think about what we are going to lose, one of the big things I think about is that we are going to lose a lot of knowledge about China because the people who have been involved in these projects for a really long time – like folks at the Ford Foundation and the American Bar Association – these are some of the Americans who are most knowledgeable about what’s going on in China and some of the very few American voices that are on the ground participating in any way in domestic debates over what should happen with rule of law.

EL: Just in closing, where do you see environmental litigation and/or the environmental movement now that you are comfortable calling it that, where do you see it going in China in the future?

What will the future environmental movement look like for these kids?Photo: AFP

RS: Well the environmental movement is totally going to take off. Now that it is here and I am comfortable with it, I’m going to predict….

EL: [laughing]…yes….now that you have written a book about it, it is going to take off….

RS: No, I really think so though. I just see a growing demand for a reduction of risk; not just environment but also food safety. There is no question that Chinese citizens have a right to expect, increasingly expect and increasingly will expect government regulation to reduce risk in their lives. I’m not exactly sure what form that reduction of risk is going to take. It may take the form of regulation and beefing up regulatory agencies as opposed to courts and judges. That’s the part that is not clear.

I do think that the Chinese government will be responsive to these demands for risk reduction. But exactly how they are going to be responsive is not yet clear. This area is changing so fast. It was so hard to let this book go off to the publishers because the story is changing every year. Between when I started this book and when I finished it, laws on standing changed, 95 environmental courts opened around the nation, China Greenpeace brought their first environmental law suit in China.

This concludes China Law & Policy’s three-part interview series with Prof. Rachel Stern. To go back and read Part 1 of the interview (focus on the rise of the environmental movement in China), click here. To read Part 2 of the interview (focus on litigating environmental cases in China), click here.

Back in January, Beijing saw some of the worst air pollution in its modern history. Even the state-run media, which usually tries to cover up environmental disasters, openly discussed the off-the-chart pollution levels that were literally suffocating the city. Did this open discussion signal change?

Certainly over the past decade China has passed many environmental protection laws. There has been increasing citizen awareness and on occasion government responsiveness. But what role has the law and litigation played in moving Chinese society forward?

Below is the audio and transcript of part 1 of a three part series. In Part 1, Prof. Stern discusses the origins of China’s environmental rights movement and what that movement looks like in an authoritarian state.

EL: Let’s start with the pollution in Beijing this past January, specifically the horrible smog that covered the city for days with residents being warned not to leave their homes. A lot of outsiders compared the Beijing smog in January to the Great London Smog of 1952 or the New York City killer smog of 1966. First off, do you think it’s fair to compare Beijing’s pollution to London’s in the 50s or New York in the 60s? Is this the same level and type of pollution?

RS: Well, I can certainly see where the comparison is coming from. All those examples you mentioned are all examples of air pollution in major

Photo from Beijing Air-pocolpyse, Jan. 2013

cities that are the outcome of industrialization and economic development. They’re huge crisis events that really galvanize the public and draw attention to an issue area. So sure, I think the comparison is fair.

Whether or not it is totally accurate is a little harder to say just because, at the risk of sounding like a social scientist, it is hard to get data that is exactly comparable. So one of the things that was in the news that you are probably know about was that China just started measuring particulate matter under 2.5 microns in January [2013]. So whether or not the quality of the smog is exactly the same, it’s really hard to compare. That London smog that you mentioned, I just glanced back at some of the historical accounts, there were accounts that 4,000 people died in that smog. So that’s not quite the same as the “air-pocalypse” that were coming out of.

But I do think that the events are comparable in terms of drawing attention to a problem and galvanizing the public behind the issue.

EL: And that’s what I think a lot of foreign journalists and China watchers kind of also looked at when they compared Beijing to London and New York. That they argue that these kind of incidents are necessary to get the society on board to promote environmental awareness and movements. But to what extent do you think China is different from London or the United States? Do you think the fact that China is a one-party state with a developing legal system will cause a different result?

RS: Of course. The fact that it is a one-party state with a developing legal system shapes all the possibilities for environmental activism in China. But let me talk about the part where they are actually kind of the same. I think one of the things we see in environmental movements worldwide is the difference between crisis events and chronic problems. Chronic problems: the fact that air pollution is terrible day in and day out, in general what happens is that people learn to live with it. It just becomes the new normal. Sometimes you get this with Chinese friends who are visiting the States for the first time and hadn’t realized that it could be different.

The role of the crisis event is to create a sense of urgency. Crisis events for that reason tend to play a really large role in environmental movements. So I am actually hopefully that the air-pocalypse will play a similar kind of role in China as the Great Smog and other events like that did in the United States.

What’s so different in China is that the opportunities for public participation are so much more limited. We’ll talk more about this but it’s really hard for NGOs to bring environmental litigation under the current legal system. So that’s really different than here in the United States where NRDC and the Sierra Club were really instrumental in some of the major pollution law suits in the 1960s and the 1970s. And of course there is no elections [in China]. That’s really different from Japan where the LDP started to take on environmental issues when they started losing elections over it. So that mechanism of accountability is somewhat broken in the Chinese case as well.

From a red China to a green China?

EL: You had mentioned in comparing London and New York to Beijing, it is kind of similar path with the industrialization so let’s rewind a bit with China and focus now just on China. China basically starts industrializing in the early 1980s with Deng Xiaoping. With that we see the increasing environmental pollution and degradation. But when do you see the development of an environmental movement or concern about the environment? I know the past decade we have seen a lot of laws but do you see it before that and was there a certain incident or crisis moment that really sparked public and government attention to the issue before 2000?

RS: I always felt uncomfortable talking about China’s environmental movement. I think I only started using that term with some degree of comfort maybe last year. It was really recent.

EL: What made you uncomfortable about using it?

RS: Well, movement implies a sustained political push by a large group of people. China’s first environmental NGO is founded in 1994 by Liang

Liang Congjie celebrates some of Friends of Nature’s victories

Congjie; that’s Friends of Nature. That’s sort of the first generation of environmental NGOs in China is the in 1990s. They had a few really notable successes, particularly drawing attention to the hunting of a rare Tibetan antelope. That was one of the big, early Friends of Nature successes. But throughout that early period, the NGOs are really focused on environmental education and raising awareness of environmental issues. And they really had their work cut out for them. When I think about surveys from the 1990s they were just a few but they are really super interesting. One of the survey questions that got asked for example in Anhui province was “have you ever heard of the term environmental protection; have you ever heard of the term ‘huangbao’ [环保] “ Over 90% of people said “nope, never herd of it.”

EL: Who were these surveys given out to? Who gave out the surveys and was it then just to the general public?

RS: No, it was to the general public in a rural part of Anhui province.

EL: Was this sponsored by the Friends of Nature NGO?

RS: No, this was a group of environmental researchers that were mostly based in the US.

So that was the story throughout most of the 1990s. Then attention to environmental issues really started to pick up in the 2000s. There was a dramatic expansion of the NGO sector in general and a blossoming number of environmental NGOs were a big part of that story. With more groups you got more diversity of approaches.

This coincides with a time when the central government started making environment more of a priority too. So one of the key moments was in 2007 when Wen Jiabao introduced the phrase “ecological civilization” – shengtai wenming [生态文明] – at the 17th Party Congress. A lot of observers, both within China and outside of it, really saw that as a sign that environmental issues were rising in prominence for the central government. So that was a big event that 17th Party Congress.

The Green Olympics of course in Beijing – is it going to be possible to hold the Olympics in one of the world’s most polluted cities? That was a huge event in the 2000s.

Also the cancer villages and the amount of media attention surrounding villages were there were lots and lots of people dying of cancer. This was all the Chinese media, not the international media. But the linking of those cancer cases to pollution [was important].

Those are three of the events in the 2000s that really, really jacked attention to environmental issues inside of China. And as the decade has worn on we have started to see more of the NIMBY [Not In My Back Yard] protests especially in the urban areas. I finally started to feel more comfortable thinking about an environmental movement. It’s widespread enough and it isn’t just a few people.

EL: You had said before that you don’t have elections in China and that there is less accountability but this media attention to some of these

China’s new President Xi Jinping – ready to be responsive?

cancer villages, the fear of 2008 Olympics being a pollution nightmare for the government, there is in a way some accountability.

RS: I think there is definitely responsiveness.

EL: Yeah, I guess that is different.

RS: Yes. I think there is some degree of accountability too through responsiveness. It’s just that the mechanisms are different. In democracies elections are the mechanism by which government officials are held accountable. And here [in China] you have a government that is really trying to be responsive and you see this all the time in the kind of NIMBY protests that come out of urban areas. They [the Chinese government] actually back down quite a bit and give urban residents what they want. But that’s because of fears of unrest or media pressure or being embarrassed; not because of elections.

EL: Now in terms of the Chinese government responding to some of this pressure. So the past decade has seen enormous amounts of laws written for environmental protection and you discuss this in your book Environmental Litigation in China. Based on what is written, how well written are [these laws] and how thought out are they?

And you thought the 1990s was just a good time for this guy? Also boom time for Chinese legal drafters.

RS: I think they’re pretty well thought out. It’s part of a big trend toward drafting lots of laws. The 1990s and 2000s were boom times for legal drafters in China. There are laws being drafted all the time on all subjects; we can’t have gaps. Often the process of legal drafting is really a thoughtful one – of looking around the world, seeing what other countries do, trying to pick and choose the elements or the best practices that are really going to work well for China.

So I think over the course of the last decade, the consensus has changed a little bit from saying China doesn’t have enough environmental laws to saying well the laws that we have on the books, they’re not perfect but they’re not bad. So I think the consensus has shifted to thinking that the problem is really about enforcement, about the gap between what should be happening and what’s actually happening.

Please return to China Law & Policy for Parts 2 and 3 of our interview with Prof. Stern. In Part 2, Prof. Stern maps out what environmental litigation looks like in China today as well as discusses other alternatives to litigation that has been having more success. In Part 3, Prof. Stern concludes the interview with her analysis of international NGO’s work in China as well as what she sees for the future of environmental litigation in China.

The air pollution reached off-the-chart dangerous levels today in Beijing and will likely remain that way until Tuesday. Saturday afternoon, the United States Embassy, which has been publicly reporting Beijing air pollution from its monitoring site in the Chaoyang area of Beijing since 2008, recorded Air Quality Index (AQI) numbers of over 800. AQI of 301-500 is considered hazardous where all outdoor physical should be avoided. Beijing authorities were advising all residents to stay indoors. What does 700-800 AQI look like? Here are some pics:

Photo from Beijing Air-pocolpyse, Jan. 2013

These pictures of Beijing are gross. But they aren’t that much different from pictures of New York City in the 1950s and 1960s, or London during the same time. New York alone had three notorious smog disasters – 1952, 1962 and 1966. The causes were similar – a cold winter resulting increased use of coal; factories surrounding the city; and the exhaust from dirty trucks and cars. For New York and the United States, these smog incidents were a turning point. Five to ten years later, the Clean Air Act was passed with a vigorous enforcement mechanism. Since the early 1990s, less than a generation later, pollution in New York City remains relatively low (vis a vis the 1966).

So will these pictures serve to bring change to China, specifically in enforcement of its environmental standards? Perhaps. What might also bring change is the fact that the Chinese government – a one-party authoritarian regime – can no longer hide extremely hazardous pollution. This might sound strange to those who don’t follow China regularly, but it was shockingly reassuring to hear that it was the Beijing government that was advising people to stay indoors. Xinhua even honestly reported that AQI exceeded 900. It’s rare to see such transparency from the Chinese government.

I believe a lot of this transparency is the effect of one thing: the U.S. Embassy’s hourly publication of Beijing’s AQI. In 2008, the U.S. Embassy began to measure Beijing air quality, publishing it through a twitter feed. Although the twitter feed is blocked in China, many popular Chinese websites pick up the feed and publish it inside the Great Firewall. To call this an thorn in the Chinese government’s side is an understatement. In 2009, according to Wikileaks, at a meeting with the Ministry of Foreign Affairs (“MFA”), Embassy personnel were informed that the hourly publication of the Embassy’s AQI was “confusing” to Chinese people and could result in unexpected “social consequences.” MFA requested that access to the feed be limited to only foreigners. The Embassy did not give in.

Thus, likely in order to restore its credibility, in early 2012, the Beijing municipal government began to publish its own AQI numbers from a site on the other side of Beijing. While at times these numbers may differ (with the U.S. numbers usually showing a more hazardous level), so far for this smog disaster the numbers have remained relatively the same: both off-the-charts pollution levels.

So while this pollution is horrible, it demonstrates perhaps the impact of seemingly small, stubborn policies – here the U.S. Embassy reporting in real time Beijing’s true pollution – in bringing greater transparency to a Chinese government that otherwise would not have to. Perhaps now that Beijing is honest with its own people, it will be set on a course to reform its laws and relegate pollution like today’s to episodes of Mad Men.